The proposed order shall state the date of and identify the attendees at any meet and confer conferences.
C.R.C.P. 16
Comments
1995
History and Philosophy
[1] Effective differential case management has been a long-term goal of the Bench, Bar, and Public. Adoption by the Colorado Supreme Court of C.R.C.P. 121 and its practice standards in 1983; revised C.R.C.P. 16 in 1988 to require earlier disclosure of matters necessary for trial; and the Colorado Standards for Case Management-Trial Courts in 1989 were a continuing and evolving effort to achieve an orderly, fair and less expensive means of dispute resolution. Those rules and standards were an improvement over prior practice where there was no prescribed means of case management, but problems still remained. There were problems of discovery abuse, late or inadequate disclosure, lack of professionalism, slow case disposition, outrageous expense and failure to achieve an early settlement of those cases that ultimately settled.
[2] In the past several years, a recognition by the organized Bar of increasing unprofessional conduct by some attorneys led to further study of problems in our civil justice system and new approaches to resolve them. New Federal Rules of Civil Procedure were developed to require extensive early disclosure and to limit discovery. The Colorado Bar Association’s Professionalism Committee made recommendations concerning improvements of Colorado’s case management and discovery rules.
[3] After substantial input through surveys, seminars and Bench/Bar committees, the Colorado Supreme Court appointed a special Ad Hoc Committee to study and make recommendations concerning Colorado’s Civil Rules pertaining to case management, disclosure/discovery and motions practice. Reforms of Rules 16, 26, 29, 30, 31, 32, 33, 34, 36, 37, 51, 121 § 1-11, 121 § 1-12, 121 § 1-15, and 121 § 1-19 were developed by this Committee.
[4] The heart of the reform is a totally rewritten Rule 16 which sets forth a new system of case management. Revisions to Rules 26, 29, 30, 31, 32, 33, 34, 36, and 37 are patterned after December 1, 1993, revisions to Federal Rules of the same number, but are not in all respects identical. Colorado Rules 16, 26, 29, 30, 31, 32, 33, 34, 36, and 37 were developed to interrelate with each other to provide a differential case management/early disclosure/limited discovery system designed to resolve difficulties experienced with prior approaches. Changes to C.R.C.P. 121 §§ 1-11, 1-12, 1-15, and 1-19 are designed to interrelate with the case management/disclosure/ discovery reform to improve motions practice. In developing these rules, the Committee paid particular attention to the 1993 revisions of the Federal Rules of Civil Procedure and the work of the Colorado Bar Association regarding professionalism.
Operation
[5] New Rule 16 and revisions of Rules 26, 29, 30, 31, 32, 33, 34, 36, 37, 51, and 121 §§ 1-11, 1-12, 1-15, and 1-19 are designed to accomplish early purposeful and reasonably economical management of cases by the parties with Court supervision. The system is based on communication, including required early disclosure of persons with knowledge and documents relevant to the case, which disclosure should lead in many cases to early evaluation and settlement efforts, and/or preparation of a workable Case Management Order. Lead attorneys for each party are to communicate with each other in the spirit of cooperation in the preparation of both the Case and Trial Management Orders. Court Case Management Conferences are available where necessary for any reasonable purpose. The Rules require a team effort with Court leadership to insure that only appropriate discovery is conducted and to carefully plan for and conduct an efficient and expeditious trial.
[6] Rules 16 and 26 should work well in most cases filed in Colorado District Courts. However, where a case is complex or requires special treatment, the Rules provide flexibility so that the parties and Court can alter the procedure. The importance of economy is encouraged and fostered in a number of ways, including authorized use of the telephone to conduct in-person attorney and Court conferences.
[7] The Committee acknowledges the greater length of the Rules comprising this reformed system. However, these Rules have been developed to describe and to eliminate “hide-the-ball” and “hardball” tactics under previous Disclosure Certificate and Discovery Rules. It is expected that trial judges will assertively lead the management of cases to ensure that justice is served. In the view of the Committee, abuses of the Rules to run up fees, feed egos, bludgeon opponents into submission, force unfair settlements, build cases for sanctions, or belittle others should not be tolerated.
[8] These Rules have been drafted to emphasize and foster professionalism and to de-emphasize sanctions for non-compliance. Adequate enforcement provisions remain. It is expected that attorneys will strive diligently to represent their clients’ best interests, but at the same time conduct themselves as officers of the Court in the spirit of the recently adopted Rules of Professional Conduct.
(a)
The purpose and scope of Rule 16 are as set forth in subsection (a). Unless otherwise ordered by the Court or stipulated by the parties, Rule 16 does not mandatorily apply to domestic relations, juvenile, mental health, probate, water law, forcible entry and detainer, Rule 120, or other expedited proceedings. Provisions of the Rule could be used, however, and Courts involved in those proceedings should consider their possible applicability to particular cases.
(b)
The “Case Management Order” is the central coordinating feature of the Rule 16 case management system. It comes at a relatively early but realistic time in the case. The Case Management Order governs the trial setting; contains or coordinates disclosure; limits discovery and establishes a discovery schedule; establishes the deadline for joinder of additional parties and amendment of pleadings; coordinates handling of pretrial motions; requires a statement concerning settlement; and allows opportunity for inclusion of other provisions necessary to the case.
[9] Lead counsel for each of the parties are required to confer about the nature and bases of their claims and defenses, discuss the matters to be disclosed and explore the possibilities of a prompt settlement or other resolution of the case. As part of the conferring process, lead counsel for each of the parties are required to cooperate in the development of the Case Management Order, which is then submitted to the Court for approval. If there is disagreement about any aspect of the proposed Case Management Order, or if some aspect of the case requires special treatment, the parties are entitled to an expeditious Case Management Conference. If any party is appearing pro se an automatic mandatory Case Management Conference is triggered.
[10] A time line is specified in C.R.C.P. 16(b) for the C.R.C.P. 26(a)(1) disclosures, conferring of counsel and submission of the proposed Case Management Order. The time line in section (b) is triggered by the “at issue” date, which is defined at the beginning of C.R.C.P. 16(b).
[11] Disclosure requirements of C.R.C.P. 26, including the duty to timely supplement and correct disclosures, together with sanction provisions of C.R.C.P. 37 for failure to make disclosure, are incorporated by reference. Because of mandatory disclosure, there should be substantially less need for discovery. Presumptive limitations on discovery are specified in C.R.C.P. 26(b)(2). The limitations contained in C.R.C.P. 26 and Discovery Rules 29, 30, 31, 32, 33, 34, and 36 are incorporated by reference and provision is made for discovery above presumptive limitations if, upon good cause shown (as defined in C.R.C.P. 26(b)(2) ), the particular case warrants it. The system established by C.R.C.P. 16(b)(1)(IV) requires the parties to set forth and obtain Court approval of a schedule of discovery for the case, which includes the timing and number of particular forms of discovery requests. The system established by C.R.C.P. 16(b)(1)(IV) also requires lead counsel for each of the parties to set forth the basis of and necessity for all such discovery and certify that they have advised their clients of the expenses and fees involved with each such item of discovery. The purpose of such discovery schedule and expense estimate is to bring about an advanced realization on the part of the attorneys and clients of the expense and effort involved in the schedule so that decisions can be made concerning propriety, feasibility, and possible alternatives (such as settlement or other means of obtaining the information). More stringent standards concerning the necessity of discovery contained in C.R.C.P. 26(b)(2) are incorporated into C.R.C.P. 16(b)(l)(IV). A Court should not simply “rubber-stamp” a proposed discovery schedule even if agreed upon by counsel.
[12] A Court Case Management Conference will not be necessary in every case. It is anticipated that many cases will not require a Court Case Management Conference, but such conference is available should the parties or the Court find it necessary. Regardless of whether there is a Court Case Management Conference, there will always be the Case Management Order which, along with the later Trial Management Order, should effectively govern the course of the litigation through the trial.
(c)
The Trial Management Order is jointly developed by the parties and filed with the Court as a proposal no later than thirty days prior to the date scheduled for the trial (or at such other time as the Court directs). The Trial Management Order contains matters for trial (see specific enumeration of elements to be contained in the Trial Management Order). It should be noted that the Trial Management Order references the Case Management Order and, particularly with witnesses, exhibits, and experts, contemplates prior identification and disclosure concerning them. Except with permission of the Court based on a showing that the witness, exhibit, or expert could not have, with reasonable diligence, been anticipated, a witness, exhibit, or expert cannot be revealed for the first time in the Trial Management Order.
[13] As with the Case Management Order, Trial Management Order provisions of the Rule are designed to be flexible so as to fit the particular case. If the parties cannot agree on any aspect of the proposed Trial Management Order, a Court Trial Management Conference is triggered. The Court Trial Management Conference is mandatory if any party is appearing in the trial pro se.
[14] As with the Case Management Order procedure, many cases will not require a Court Trial Management Conference, but such a conference is available upon request and encouraged if there is any problem with the case that is not resolved and managed by the Trial Management Order.
[15] The Trial Management Order process will force the attorneys to make decisions on which claims or defenses should be dropped and identify legal issues that are truly contested. Both of those requirements should reduce the expenses associated with trial. In addition, the requirement that any party seeking damages define and itemize those damages in detail should facilitate preparation and trial of the case.
[16] Subsection (c)(IV), pertaining to designation of “order of proof,” is a new feature not contained in Federal or State Rules. To facilitate scheduling and save expense, the parties are required to specifically identify those witnesses they anticipate calling in the order to be called, indicating the anticipated length of their testimony, including cross-examination.
(d)
Provision is made in the C.R.C.P. 16 case management system for an orderly advanced exchange and filing of jury instructions and verdict forms. Many trial courts presently require exchange and submission of a set of agreed instructions during the trial. C.R.C.P. 16(d) now requires such exchange, conferring, and filing no later than three (3) days prior to the date scheduled for the commencement of the trial (or such other time as the Court otherwise directs).
2015
[17] The previous substantive amendment to Rule 16(b) established presumptive discovery limits and procedures which caused filing of detailed Case Management Orders and appearing before a judge to become rare. While this reduced lawyers’ time in preparing detailed orders, it also resulted in judges not being involved in pretrial case management.
[18] Among the key principles adopted by the Federal Advisory Committee on Rules of Civil Procedure, as well as the Civil Access Pilot Project (“CAPP”), is that cases move more efficiently if judges are involved directly and early in the process. (See also, “Working Smarter, Not Harder: How Excellent Judges Manage Cases,” at 7-20 (2014), available at http://www.actl.com).
[19] Particularly in conjunction with the principle that discovery should be in proportion to the genuine needs of the case, it was deemed important for judges, in addition to litigants, to be involved early in the pretrial process in deciding how much discovery was appropriate. Both judges and lawyers have noted that some lawyers have a financial incentive not to limit discovery. Perhaps more significant was the recognition that many lawyers engage in “over discovery” because of the fear (justifiable or not) that failing to engage in every conceivable means of discovery until a judge orders one to “stop!” could expose a trial lawyer to subsequent expensive malpractice litigation. These problems are greatly alleviated with the intervention of trial judges placing reasonable limitations on discovery and potentially excessive pretrial practices at the earliest meaningful stage of the case.
[20] CAPP required in-person initial case management conferences with the judge. These conferences followed submission of a report from the parties which included information relevant to the evaluation of proportionality as well as how the case should be handled. The analysis of CAPP reflects that this practice was widely liked by both lawyers and judges. It is desirable that there be an official order arising from the case management conference reflecting the court’s input and which, importantly, provides enforcement power. Thus, Rule 16(b) has completely rewritten the rule to include requiring a joint report to the court in the form of a proposed Case Management Order. It can be approved or modified by the court to become the official order. It is to be filed with the court not later than 42 days after the case is at issue, but at least 7 days before the case management conference.
[21] The new rule lists the required contents of the proposed Case Management Order and also provides a form that can be downloaded for preparation of the proposed order. Although at first glance the new rule appears somewhat onerous, most of the information sought is relatively easy to include and should be discussed by opposing counsel or parties, in any event, at the outset of the case.
[22] The joint report/proposed Case Management Order must contain the following information, which is unchanged from former Rule 16(b)(1)-(3): the “at issue” date; contact information for the “responsible attorney”; and a description of the “meet and confer” discussions. The joint report must also provide:
. a brief description of the case from each side, and of the issues to be tried (one page per side);
. a list of pending, unresolved motions;
. an evaluation of the proportionality factors from C.R.C.P. 26(b)(1);
. a confirmation that the parties discussed settlement and description of prospects for settlement;
. proposed deadlines for amending the pleadings;
. the dates when disclosures were made and any objections to those disclosures;
. an explanation of why, if applicable, full disclosure of damages has not been completed and when it will be;
. subjects for expert testimony with a limit of only one expert per side per subject unless good cause is established consistent with proportionality;
. acknowledgement that oral discovery motions may be required by the court;
. provision for electronic discovery when significant electronic discovery is anticipated;
. estimated time to complete discovery and length of trial so the court can set trial at the case management conference; and
. a catchall for other appropriate matters.
[23] The former provisions in Rule 16(c) related to Modified Case Management Orders are repealed as moot but are replaced with the deadlines for pretrial motions presently contained in Rule 16(b)(9).
[24] Rule 16(d) is rewritten to require personal or telephonic attendance at the case management conference by lead counsel. In anticipation that judges will not want (or need) to hold in person case management conferences in all cases, Rule 16(d)(3) allows the court to dispense with a case management conference if it is satisfied that the lawyers are working together well and the joint report contemplates appropriate and proportionate pretrial activity. However, the rule recommends that case management conferences always be held if one or more of the parties is self-represented. This gives the court the opportunity to try to keep the case and selfrepresented party focused and on track from the beginning.
Recent Annotations “Lone Pine orders”, where a trial court orders plaintiffs to present prima facie evidence supporting their claims after initial disclosures, but before other discovery commences, or risk having their case dismissed, are prohibited under state law. While the supreme court revised this rule to create a “differential case management/early disclosure/limited discovery system”, these revisions are not so substantial as to effectively overrule other supreme court holdings. Although portions of this rule and C.R.C.P. 26 may afford trial courts more discretion than they previously had, that discretion is not so broad as to allow courts to issue Lone Pine orders. And, notably, the state’s version of this rule does not include the language relied upon by federal courts when issuing Lone Pine orders. Existing procedures under the Colorado rules of civil procedure sufficiently protect against meritless claims, and, therefore, a Lone Pine order was not required solely on that basis. Strudley v. Antero Res. Corp., 2013 COA 106, __ P.3d __ [published July 3, 2013]. Child support is not a “liability”, the omission or nondisclosure of which materially affects the division of assets or liabilities under section (e)(10). In re Roddy, 2014 COA 96, __ P.3d __ [published July 31, 2014]. Annotation I. General Consideration. Law reviews. For article, “Pre-Trial in Colorado in Words and at Work”, see 27 Dicta 157 (1950). For article, “Some Comments on Pre-Trial”, see 28 Dicta 23 (1951). For article, “Pleadings, Rules 7 to 25 “, see 28 Dicta 368 (1951). For article, “Pleadings and Motions: Rules 7-16 “, see 23 Rocky Mt. L. Rev. 542 (1951). For article, “Expert Witnesses”, see 24 Rocky Mt. L. Rev. 418 (1952). For article, “Pre-Trial Procedure — Should It Be Abolished in Colorado?”, see 30 Dicta 371 (1953). For article, “One Year Review of Civil Procedure and Appeals”, see 37 Dicta 21 (1960). For article, “One Year Review of Civil Procedure and Appeals”, see 40 Den. L. Ctr. J. 66 (1963). For article, “Plaintiff’s Advantageous Use of Discovery, Pre-Trial and Summary Judgment”, see 40 Den. L. Ctr. J. 192 (1963). For Note, “One Year Review of Civil Procedure”, see 41 Den. L. Ctr. J. 67 (1964). For comment on Glisan v. Kurth appearing below, see 36 U. Colo. L. Rev. 568 (1964). For article, “Selecting Cases for Mediation”, see 17 Colo. Law. 2007 (1988). For article, “Colorado’s New Rules of Civil Procedure, Part I: Case Management and Disclosure”, see 23 Colo. Law. 2467 (1994). For article, “Common Pitfalls in Complying with C.R.C.P. 16 and 26 When Drafting Case Management Orders”, see 26 Colo. Law. 39 (March 1996). For article, “Rules 16 and 16.2: Reality Check 1998”, see 27 Colo. Law. 45 (March 1998). For article, “Civil Rules 16 and 26: Pretrial Procedure and Discovery Revisited and Revised”, see 30 Colo. Law. 9 (December 2001). For article, “Comment on the Amendments to C.R.C.P. 16: An Opportunity to Enjoy Practicing Law”, see 31 Colo. Law. 23 (April 2002). Annotator’s note. Some of the following annotations refer to cases decided under C.R.C.P. 16 as it existed prior to the 1994 repeal and readoption of that rule, effective January 1, 1995. Former C.R.C.P. 16 provided for pre-trial conferences and pre-trial orders rather than case management orders and trial management orders. This rule is the authority under which trial courts promulgate local pre-trial rules and hold pre-trial conferences. Glisan v. Kurth, 153 Colo. 102, 384 P.2d 946 (1963). The rule is not a mere technicality and compliance is mandatory. Danburg v. Realties, Inc., 677 P.2d 439 (Colo. App. 1984). This rule provides that the court may direct the attorneys to appear before it for a conference to consider certain matters, and having done so, then the court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, which limits the issues for trial to those not disposed of by admissions or agreement of counsel, and such order, when entered, controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229 (1955). Effective use of the pre-trial conference can, and does, contribute much in meeting the problems of mounting congestion in the trial courts. Glisan v. Kurth, 153 Colo. 102, 384 P.2d 946 (1963). To make pre-trial procedure effective, appellate interference with the trial court in this area must be kept at a minimum. Glisan v. Kurth, 153 Colo. 102, 384 P.2d 946 (1963). In the application of the pre-trial rule, the court must be careful that devotion to the task does not lead it to deprive a litigant of his right to a trial. Glisan v. Kurth, 153 Colo. 102, 384 P.2d 946 (1963). Civil discovery rules inapplicable to release hearings. Based on §§ 16-8-115 to 16-8-117 and on the special nonadversary nature of a release inquiry, the participants in release proceedings do not have the broad right of discovery as provided in the rules of civil procedure. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976). Under C.R.C.P. 81(a), the procedure in release hearings under § 16-8-115 is so inconsistent and in conflict with the rules of civil procedure as to make civil discovery rules inapplicable to release hearings. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976). Denial of a jury trial for failure to comply with section (d) was not an appropriate remedy and a right to a jury trial may only be lost for the reasons cited in C.R.C.P. 39(a). Wright v. Woller, 976 P.2d 902 (Colo. App. 1999). Applied in In re Estate of Gardner, 31 Colo. App. 361, 505 P.2d 50 (1972); Clark v. District Court, 668 P.2d 3 (Colo. 1983); Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977 (Colo. App. 2011). II. Disclosure. Liberal policy regarding supplementing disclosure certificate. Just as C.R.C.P. 15 has been held to reflect the policy of liberally allowing amendments to pleadings, so too should a similar policy be followed with respect to supplementing disclosure certificates. Consolidated Hardwoods v. Alexander Const., 811 P.2d 440 (Colo. App. 1991). Absent a showing of prejudice, a trial court abuses its discretion in not permitting amendment to a disclosure statement where the request is made more than 80 days prior to trial and relates to a matter that was previously known but was erroneously not included in the disclosure certificate. Consolidated Hardwoods v. Alexander Const., 811 P.2d 440 (Colo. App. 1991). When a trial court’s actions substantially tip the balance in an effort to avoid prejudice and delay and as a result unreasonably deny a party his or her day in court, the reviewing court must overturn the decision of the trial court. J.P. v. District Court, 873 P.2d 745 (Colo. 1994). The district court abused its discretion in denying the petitioner’s motions to endorse witnesses and freezing discovery. J.P. v. District Court, 873 P.2d 745 (Colo. 1994). Trial court abused its discretion when, as a sanction for filing a disclosure certificate signed by plaintiff’s former attorney’s paralegal rather than the plaintiff herself, the court limited the witnesses the plaintiff could call to the defendant and herself. Defendants did not suffer any prejudice as a result of the improper signing of the certificate since the filing served its purpose of timely informing them of the evidence plaintiff intended to present at trial. Keith v. Valdez, 934 P.2d 897 (Colo. App. 1997). If one party elicits opinions from another party’s expert witness which are beyond the scope of the testimony described in the disclosure statement and are not of the kind which would impeach such testimony, the witness will be considered, for the purposes of the disclosure statement requirements, as the witness of the party eliciting the opinions. Freedman v. Kaiser Fund Health Plan, 849 P.2d 811 (Colo. App. 1992). An objection on the grounds that a party has not adequately disclosed the basis for and summary of each expert witness opinion must be made within a reasonable time. Perkins v. Flatiron Structures Co. 849 P.2d 832 (Colo. App. 1992). The purpose of the disclosure mandated by the rule is to provide parties with adequate time to prepare by obtaining relevant evidence. Williams v. Continental Airlines, Inc., 943 P.2d 10 (Colo. App. 1996). Sanctions for failure to comply with disclosure rules rest in the discretion of the trial court and should not be disturbed absent an abuse of discretion. Such sanctions, which may include witness preclusion, should commensurate with the seriousness of the violation. Williams v. Continental Airlines, Inc., 943 P.2d 10 (Colo. App. 1996). Applied in People ex rel. Pub. Utils. Comm’n v. Entrup, 143 P.3d 1120 (Colo. App. 2006). III. Case Management Order. This rule commands that a trial court shall make an order which recites the action taken at the pre-trial conference, and pursuant thereto, requires the trial court to direct the preparation of an order containing what transpired at the conference, and how the results of such conference shall control the subsequent course of the proceedings. Albright v. District Court, 150 Colo. 487, 375 P.2d 685 (1962). The pre-trial order controls the subsequent course in the action, unless the court modifies the same at the trial to prevent manifest injustice. Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229 (1955); Harris Park Lakeshore, Inc. v. Church, 152 Colo. 278, 381 P.2d 459 (1963); Shira v. Wood, 164 Colo. 49, 432 P.2d 243 (1967); Greenlawn Sprinkler Corp. v. Forsberg, 170 Colo. 286, 461 P.2d 22 (1969); Pub. Serv. Co. v. Bd. of Water Works, 831 P.2d 470 (Colo. 1992). Order must fully recite any action taken relative to amendments allowed to the pleadings. Gorin v. Arizona Columbine Ranch, Inc., 34 Colo. App. 405, 527 P.2d 899 (1974). Case reinstated where a delay reduction order required both the filing of a proposed case management order and setting the case for trial within 30 days; held that the issuance of case management order then extended deadline for setting of trial another 30 days. Becker v. District Court for Arapahoe County, 969 P.2d 700 (Colo. 1998). This rule contains no language limiting its application to the first trial only of an action; accordingly, it will govern second trial in absence of showing that orders and stipulation made at pre-trial conference will work manifest injustice. Harris Park Lakeshore, Inc. v. Church, 152 Colo. 278, 381 P.2d 459 (1963). Disputed issues should not be resolved. In the absence of agreement or admissions by the parties, the trial court should not resolve disputed issues in a pre-trial order. Cunningham v. Spring Valley Estates, Inc., 31 Colo. App. 77, 501 P.2d 746 (1972), aff’d, 181 Colo. 435, 510 P.2d 336 (1973). Assent is assumed, absent objection. It is assumed, in the absence of an objection, that a pre-trial order is made in cooperation with, and by assent of, the parties. Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229 (1955). In the absence of an objection to the pre-trial order, or the part thereof with which counsel present do not agree, the order precludes any further challenge of the questions determined at the pre-trial conference. Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229 (1955); Shira v. Wood, 164 Colo. 49, 432 P.2d 243 (1967). In the absence of an objection, all matters determined at the pre-trial conference have the force and effect of a stipulation of the parties as to the correctness thereof. Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229 (1955); Shira v. Wood, 164 Colo. 49, 432 P.2d 243 (1967); Greenlawn Sprinkler Corp. v. Forsberg, 170 Colo. 286, 461 P.2d 22 (1969). Pretrial order, if not objected to, controls introduction of evidence at trial. Great W. Food Packers, Inc. v. Longmont Foods Co., 636 P.2d 1331 (Colo. App. 1981). The court errs in going beyond remaining issues. Where there is no objection to the pre-trial order, the court itself does not thereafter in any manner “modify” the pre-trial order, and the issue is never injected into the case on the basis of any expressed or implied consent of the parties, the trial court errs in going beyond the issues which according to the pre-trial order are the only issues remaining. Greenlawn Sprinkler Corp. v. Forsberg, 170 Colo. 286, 461 P.2d 22 (1969). The court errs in giving instructions inconsistent with stipulations of pre-trial order. Where a pre-trial conference order, duly signed and to which no objection is made by either party, stipulates to a certain fact, which dispenses with the necessity of proof, it is error for the trial court to instruct the jury on a fact situation in a manner wholly inconsistent with the stipulation. Allison v. Trustee, 140 Colo. 392, 344 P.2d 1077 (1959). In the absence of agreement between the parties affected, an issue cannot be resolved against one of them by the order made upon the pre-trial conference. Marsh v. Warren, 126 Colo. 298, 248 P.2d 825 (1952). Where there is nothing in the pre-trial order which contemplates judgment against certain individuals thought to be jointly and severally liable with the defendant and their liability is never an issue in the case, there is no error in the trial court’s failure to enter a joint judgment to include them. Lewis v. Martin, 30 Colo. App. 342, 492 P.2d 877 (1971). Under this rule witnesses not listed at the pre-trial conference have been permitted to testify, and documents not listed in the pre-trial order have been admitted into evidence where such modifications of the pre-trial order were necessary to prevent injustice. Francisco v. Cascade Inv. Co., 29 Colo. 516, 486 P.2d 447 (1971). Wide discretion is vested in trial court to allow nonlisted witnesses to testify. As purpose of such pre-trial disclosure of witnesses is to enable all parties to prepare for trial, wide discretion is vested in the trial court to determine whether a witness who has not been listed on the pre-trial order and whose name has not been disclosed to the opposing party may testify. In re Estate of Gardner, 31 Colo. App. 361, 505 P.2d 50 (1972); Wood v. Rowland, 41 Colo. App. 498, 592 P.2d 1332 (1978). The failure to list surveillance films and the surveillant at the pre-trial stage, or to make them known prior to trial, does not mean that the defendants are conclusively prohibited from having the desired evidence admitted, but are simply taking a risk that the trial court in its discretion might refuse to modify the pre-trial order. Crist v. Goody, 31 Colo. App. 496, 507 P.2d 478 (1972). Such a modification will be refused unless it is determined by the court to be necessary “to prevent manifest injustice”. Crist v. Goody, 31 Colo. App. 496, 507 P.2d 478 (1972). Where no actual prejudice would result by the admission of additional exhibits, the court should permit a modification of the list of exhibits in the pre-trial order and the admission of the exhibits in evidence in order to prevent manifest injustice. Francisco v. Cascade Inv. Co., 29 Colo. App. 516, 486 P.2d 447 (1971). Where a document is not within the purview of the pre-trial order, but is in the possession of the defendant before the trial, it would be impossible to conclude that there is any prejudice incident to its reception in evidence. Landauer v. Juey, 143 Colo. 76, 352 P.2d 302 (1960). A change in counsel is not sufficient in and of itself to justify vitiating a pre-trial conference order. Harris Park Lakeshore, Inc. v. Church, 152 Colo. 278, 381 P.2d 459 (1963). A “local” rule of a district court relating to pre-trial procedure requiring counsel to approve a pre-trial order as to form and content is neither contrary to, in conflict with, nor in excess of authority granted by this rule. Albright v. District Court, 150 Colo. 487, 375 P.2d 685 (1962). Provision of local rule does not deny a party due process. The provision of a “local” rule requiring attorneys to approve a pre-trial order as to substance as well as to form does not deny a party due process of law. Albright v. District Court, 150 Colo. 487, 375 P.2d 685 (1962). The approval of the “substance” of a pre-trial order under a “local” rule of court is neither an approval by counsel of the legal effect of the order nor of the application of substantive law which may appear in said pre-trial order, but rather, is an approval only of a recital of what transpired at the pre-trial conference. Albright v. District Court, 150 Colo. 487, 375 P.2d 685 (1962). Where the procedures prescribed in a “local” rule of a district court are in lieu of a pre-trial conference, the district court has the same power to modify a list of exhibits and other documents prepared pursuant to the local rule, as it has to modify a pre-trial order. Francisco v. Cascade Inv. Co., 29 Colo. App. 516, 486 P.2d 447 (1971). The provision of a “local” rule does not preclude review by writ of error of matters duly objected to or reserved matters ruled upon a pre-trial conference. Albright v. District Court, 150 Colo. 487, 375 P.2d 685 (1962). Trial court did not err in basing its damages award upon a second stipulation between the parties as to the amount of monthly rental loss even though the amount conflicted with amount specified in trial management order where stipulation entered into after entry of order. Razi v. Schmitt, 36 P.3d 102 (Colo. App. 2001). Applied in Brown v. Hollywood Bar and Cafe, 942 P.2d 1363 (Colo. App. 1997). IV. Trial Management Order. Failure to include a claim for attorney fees in the trial management order is not a waiver of the claim. Attorney fees are neither costs nor damages, but a hybrid of each. Roberts v. Adams, 47 P.3d 690 (Colo. App. 2001).
For disclosure and discovery, see chapter 4 ( C.R.C.P. 26 to 37 ); for dismissal of actions, see C.R.C.P. 41; for amended pleadings, see C.R.C.P. 15; for instructions to jurors, see C.R.C.P. 51; for Colorado jury instructions, see C.R.C.P. 51.1.